Woods v. Warden, Warren Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

FRANKLIN WOODS,

Petitioner, : Case No. 1:20-cv-618

- vs - District Judge Timothy S. Black

Magistrate Judge Michael R. Merz

WARDEN, Warren Correctional

Institution

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Franklin Woods under 28 U.S.C. §

2254, is before the Court for decision on the merits. Relevant pleadings are the Petition (ECF No.

1), the State Court Record (ECF No. 7), the Warden’s Return of Writ (ECF No. 8), and Petitioner’s

Reply (ECF No. 9).

The Magistrate Judge reference in the case was recently transferred to the undersigned to

help balance the Magistrate Judge workload in the District. Final decision of the case remains

with District Judge Timothy Black.

Litigation History

This case arises out of two cases in the Common Pleas Court of Lawrence County, Ohio.

On December 16, 2015, Woods waived indictment and pleaded not guilty to an information

charging him with one third-degree felony count of gross sexual imposition in violation of Ohio

Revised Code § 2907.05(A)(4)(Lawrence County Case No. 15-CR-301)(Waiver of Indictment, State

Court Record, ECF No. 7, Ex. 1).

On February 24, 2016, a Lawrence County, Ohio, grand jury indicted Woods on four

fourth-degree felony gross sexual imposition counts in violation of Ohio Revised Code §

2907.05(A)(1); four third-degree felony gross sexual imposition counts in violation of Ohio

Revised Code § 2907.05(A)(4); four first-degree felony rape counts in violation of Ohio Revised

Code § 2907.02(A)(2); two first-degree felony rape counts in violation of Ohio Revised Code §

2907.02(A)(1)(b); three second-degree felony sexual battery counts in violation of Ohio Revised

Code § 2907.03(A)(5); and one third-degree felony sexual battery count in violation of Ohio

Revised Code § 2907.03(A)(5)(Lawrence County Case No. 16-CR-33)(Indictment, State Court

Record, ECF No. 7, Ex. 14).

After the trial judge denied Woods’ motion to suppress, the cases were tried jointly to a

jury in November, 2016, which found Woods guilty of one first-degree felony rape charge and four

third-degree felony gross sexual imposition charges, but not guilty of the other indicted charges. He

was sentenced to an aggregate term of 32.5 years to life imprisonment.

Woods appealed to the Ohio Court of Appeals for the Fourth District which affirmed the

convictions. State v. Woods, 2018-Ohio-4588 (Ohio App. 4th Dist. Nov. 7, 2018), appellate jurisdiction

declined, 2019-Ohio-3731 (2019). He then timely filed his petition in this Court, raising the

following grounds for relief:

GROUND ONE: Two step interrogation prohibited by the Supreme

Court in Missouri v. Seibert.

GROUND TWO: The trial court erred when it denied “Petitioner

Woods” motion to suppress when Deputy Chaffins failed to

“scrupulously honor” Woods’ assertion of his right to remain silent.

GROUND THREE: Trial court findings regarding statements

obtained by Amber Stamper are factually inaccurate and not

supported by the record.

GROUND FOUR: Randy Thompson and Amber Stamper should

be considered agents of law enforcement.

GROUND FIVE: Woods’ convictions were based on insufficient

evidence and against the manifest weight of the evidence.

(Petition, ECF No. 1).

Analysis

Ground One: Improper Interrogation Techniques

Ground Two: Error in Denial of Motion to Suppress

Ground Three: Inaccurate Factual Findings Regarding Statements Taken By Amber

Stamper

Ground Four: Randy Thompson and Amber Stamper Should Be Considered Law

Enforcement Agents

In his First Ground for Relief, Woods claims he was subjected to the method of

interrogation which the Supreme Court declared unconstitutional in Missouri v. Seibert, 542 U.S.

600, 609 (2004). In his Second Ground he asserts his motion to suppress should have been granted

because his right to remain silent was not properly honored by Deputy Sheriff Chaffins. His Third

Ground challenges the accuracy findings regarding his statements taken by Amber Stamper. And

in his Fourth Ground he claims Amber Stamper and Randy Thompson should be treated as law

enforcement agents for purposes of enforcing his Fifth Amendment rights.

Respondent defends these claims on the merits, asserting that the Fourth District’s decision

of them is not an unreasonable application of clearly established Supreme Court precedent (Return,

ECF No. 8, PageID 1433, et seq.). In his Response, Woods asserts that his children had already

been removed from his home when he was first interviewed (ECF No. 9, PageID 1463-64). He

asserts he was under the influence of alcohol, marijuana, and mood stabilizers during the

interviews. Id. at PageID 1464-66. He also asserts Chaffins and Thompson together used

questioning which failed to respect his right to remain silent. Id.

The relevant portions of the Fourth District’s decision are as follows:

[*P34] In his first and second assignments of error Woods asserts

that the trial court erred in denying his motion to suppress statements

he made to social worker supervisor Thompson and Deputy Sheriff

Chaffins. Appellate review of a trial court's decision on a motion to

suppress raises a mixed question of law and fact. State v. Hobbs, 133

Ohio St.3d 43, 2012-Ohio-3886, 975 N.E.2d 965, ¶ 6. Because the

trial court acts as the trier of fact in suppression hearings and is in

the best position to resolve factual issues and evaluate the credibility

of witnesses, we must accept the trial court's findings of fact if they

are supported by competent, credible evidence. State v. Burnside,

100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

Accepting these facts as true, we must then "independently

determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard." Hobbs at ¶

8, citing Burnside at ¶ 8.

2. Two-Step Interrogation Technique

[*P35] First Woods asserts that the trial court erred in denying his

motion to suppress because his statements to Thompson and Deputy

Sheriff Chaffins were inadmissible as part of the two-step

interrogation technique prohibited by the United States Supreme

Court in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159

L.Ed.2d 643 (2004). The plurality in Seibert held that a "midstream

recitation of [Miranda] warnings after interrogation and unwarned

confession" does not "comply with Miranda's constitutional

requirement." Id. at 604. In that case a police officer intentionally

questioned a defendant at a police station following her arrest

without providing Miranda warnings. During this questioning the

defendant made incriminating statements. The officer then gave the

defendant a 20-minute break. After the break the same officer gave

the defendant Miranda warnings, obtained a signed waiver, and

resumed questioning. During this second round of questioning the

officer confronted the defendant with the prewarning statements.

The defendant repeated her incriminating statements.

[*P36] The court referred to the police officer's "midstream"

warning as a specifically designed police strategy of "question-

first." Id. at 609-611. The court determined that "[t]he object of

question-first is to render Miranda warnings ineffective by waiting

for a particularly opportune time to give them, after the suspect has

already confessed." Id. at 611. After an objective determination

from the perspective of the suspect about whether Miranda warnings

delivered midstream could be effective enough to accomplish their

purpose, the plurality held that the defendant's postwarning

statements were inadmissible. Id. at 615-616. The Supreme Court of

Ohio applied Seibert in State v. Farris, 109 Ohio St.3d 519, 2006-

Ohio-3255, 849 N.E.2d 985.

[*P37] But before we apply Seibert, we must first decide whether

Woods made his prewarning statement to Thompson in the context

of a custodial interrogation by a law enforcement officer or agent. If

Woods was not subjected to custodial interrogation, Miranda

warnings were not necessary, making Seibert and Farris

inapplicable. See State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-

7556, 90 N.E.3d 857, ¶ 105-106.

[*P38] In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966), the United States Supreme Court established

procedural safeguards for securing the constitutional privilege

against self-incrimination. Id. To protect this right the court held that

"the prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination." Miranda, 384 U.S.

at 444.

[*P39] The key issue in this case is whether Woods was in custody

when Thompson questioned him. Custodial interrogation is that

"questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of

action in any significant way." Miranda, 384 U.S. at 444; City of

Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d

810, ¶ 9. "'Custody' is a term of art that specifies circumstances that

are thought generally to present a serious danger of coercion."

Howes v. Fields, 565 U.S. 499, 508-509, 132 S.Ct. 1181, 182

L.Ed.2d 17 (2012). In determining whether a person is in custody,

courts must examine all the circumstances surrounding the

interrogation to ascertain whether a reasonable person would have

felt at liberty to terminate the interrogation and leave. Id. "The

ultimate inquiry is simply whether there [was] a formal arrest or

restraint on freedom of movement' of the degree associated with a

formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct.

3517, 77 L.Ed.2d 1275 (1983), quoting Oregon v. Mathiason, 429

U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). "The relevant

inquiry in determining whether a person is subject to custodial

interrogation focuses upon how a reasonable person in the suspect's

position would have understood the situation[;] [t]he subjective

views of the interviewing officer and the suspect do not control

whether a custodial interrogation occurred." State v. Fouts, 4th Dist.

Washington No. 15CA25, 2016-Ohio-1104, ¶ 19.

[*P40] Relevant factors include the location of the questioning, its

duration, statements made during the interview, the presence or

absence of physical restraints during the questioning, and the release

of the interviewee at the end of the questioning. See Howes, 565

U.S. at 509; State v. Edmond, 10th Dist. Franklin No. 15AP-574,

2016-Ohio-1034, ¶ 12.

[*P41] The trial court refused to suppress Woods's statement to

Thompson, finding it was not the product of custodial interrogation.

The trial court relied upon the following facts: (1) Woods had

returned a phone call to the social worker, Stamper; (2) he

voluntarily came to the social worker's office building; (3) there

were no locked doors preventing Woods from leaving at any time

he wished to; and (4) he was never told he was not free to leave.

[*P42] Woods asserts that the trial court's factual finding that he

came to the department of job and family services building

voluntarily was not supported by the evidence because he only

appeared after Stamper told him that he would need to sign a safety

plan before M.W. could return to him. But he cites no testimony or

other evidence from the suppression hearing establishing that

Stamper threatened him with permanent removal of his daughter and

other children if he failed to come in to sign the safety plan. In fact

his daughter had already left his home through placement with his

fiancée's mother when Stamper talked to him. And Woods told

Thompson that he wanted his children to be placed there at least

temporarily. The trial court's findings were supported by the

evidence at the suppression hearing.

[*P43] The relevant circumstances include: (1) Thompson's

interrogation occurred at a county department of job and family

services office building rather than a police station; (2) Woods

voluntarily came to the building at the social worker's request; (3)

the interrogation was brief—lasting only about 25 minutes; (4)

Woods indicated a willingness to talk freely about his daughter's

allegations of sexual abuse because he did not want to drag his

daughter through a trial and he was remorseful and ashamed about

what he had done to her; (5) he was not physically restrained during

the interrogation and he was free to leave at any time during it or

during the 45-minute break before Deputy Sheriff Chaffins arrived;

and (6) Thompson expressly told him during the interview that they

did not "have to do" the interview.

[*P44] Moreover, when he interrogated Woods, Thompson was

not acting in his capacity as a police officer or an agent of the police.

The trial court concluded that although Thompson was also a part-

time village police officer, he had no police powers outside the

village, and there was no evidence that Woods had any knowledge

that Thompson was also a police officer. The trial court's findings

were supported by Thompson's testimony at the suppression

hearing, as well as his statement to Woods during the interview, that

neither he nor Stamper were police officers. Although counsel

speculates that Woods could have known Thompson to be a police

officer because of where he lived, there is nothing in the suppression

hearing that supports this speculation. Consequently, a reasonable

person in Woods's position would not have believed that Thompson,

who was acting as a social worker supervisor, and was not dressed

in a police uniform with a badge or gun, was a police officer.

[*P45] Although Miranda's requirements clearly apply to persons

acting as agents of law enforcement, see State v. Phillips, 4th Dist.

Highland No. 11CA11, 2011-Ohio-6773 ¶ 9, we are not persuaded

that Thompson and Stamper acted in that capacity while

interviewing Woods. Children's services agencies like the Lawrence

County Department of Job & Family Services have a statutory duty

to investigate any complaint concerning child abuse. Their

investigators and employees are required to attempt to interview

alleged perpetrators in child abuse cases and to report all known and

suspected child abuse to law enforcement. State v. Kessler, 12th

Dist. Fayette No. CA2005-12-037, 2007-Ohio-1225, ¶ 19, citing

R.C. 5153.16(A).

[*P46] Ohio courts have consistently held that in general, children

services case workers and employees are not considered law

enforcement officers and consequently have no duty to advise

suspects of their Miranda rights. Id.; State v. Coonrod, 12th Dist.

Fayette No. CA2009-08-013, 2010-Ohio-1102, ¶ 9, quoting State v.

Thoman, 10th Dist. Franklin No. 04AP-787, 2005-Ohio-898, ¶ 7

("In general, Ohio courts have held that 'social workers have no duty

to provide Miranda warnings because they are private individuals

without the power to arrest'"). The Supreme Court of Ohio recently

adopted this general precept by holding that "[a] social worker's

statutory duty to cooperate and share information with law

enforcement with respect to a child abuse investigation does not

render the social worker an agent of law enforcement for purposes

of the Fifth and Sixth Amendments to the United States Constitution

when the social worker interviews an alleged perpetrator unless

other evidence demonstrates that the social worker acted at the

direction or under the control of law enforcement." State v. Jackson,

154 Ohio St. 3d 542, 2018-Ohio-2169, 116 N.E.3d 1240, syllabus.

Here, Woods relies upon Thompson's dual employment as a social

worker and police officer to distinguish Jackson.

[*P47] Under limited circumstances appellate courts have upheld

trial court determinations that a social worker was acting as an agent

of law enforcement for purposes of custodial interrogation, thus

requiring Miranda warnings. See, e.g., State v. Brown, 91 Ohio

App.3d 427, 632 N.E.2d 970 (6th Dist.1993) (defendant was

coerced and in custody during interview at department of human

services where DHS social worker told the defendant that his

stepdaughter would be removed from his home if he did not attend

interview, a 6'5" police officer dominated and controlled the

interview by moving to a position no more than a few inches away

from him, the interview lasted more than an hour, which created an

intimidating atmosphere in which a reasonable person would not

have felt free to leave); State v. Torres, 67 Ohio App.3d 268, 586

N.E.2d 1153 (6th Dist.1990) (defendant was in custody for purposes

of Miranda warnings when, after agreeing to interview on

allegations that he had sexual contact with a minor, he was taken to

a private room at the department of human services by an agency

representative and an investigator for the prosecutor, who were

acting as an arm of the police department in an atmosphere that was

police dominated).

[*P48] These cases, which Woods relies upon, are easily

distinguishable. There was no evidence at the suppression hearing—

as in Brown—that the social worker threatened removal of the child

from his home; the child had already been removed as Woods

himself argued was advisable. Nor was the interrogation dominated

by either a large, intimidating uniformed police officer or a

prosecutor's investigator—as in Brown and Torres. And

significantly, the trial court here did not find a coercive, custodial

atmosphere. See State v. Walker, 10th Dist. Franklin No. 97AP02-

212, 1997 Ohio App. LEXIS 4216, 1997 WL 578946, *7 (Sept. 16,

1997) (distinguishing Brown because the trial court in that case

determined that there was an in-custody, police dominated

atmosphere surrounding the interview, whereas the trial court in

Walker did not).

[*P49] Notwithstanding Thompson's position with an uninvolved

law enforcement agency, this is not a case in which "other evidence"

demonstrates that the social workers acted at the direction or under

the control of law enforcement. Jackson at syllabus. Instead, there

is no evidence here that Thompson or Stamper acted at the direction,

control, or behest of law enforcement. Under these circumstances,

we agree with the trial court's conclusion that they were not agents

of law enforcement so as to warrant Miranda warnings.

[*P50] Because the trial court correctly held that Woods was not

in custody when Thompson interrogated him, it properly rejected

Woods's claim that the state had engaged in the impermissible two-

step interrogation technique prohibited in Seibert, 542 U.S. 600, 124

S.Ct. 2601, 159 L.Ed.2d 643, and Farris, 109 Ohio St.3d 519, 2006-

Ohio-3255, 849 N.E.2d 985. Unlike the defendants in those cases,

Woods had not been arrested or taken into custody by police when

he was initially interrogated.

[*P51] Finally, Woods claims that the trial court's findings

regarding the statements he made to social worker Stamper were

factually inaccurate and not supported by the record. The state does

not deny that the trial court's findings were inaccurate, but argues

that the error was harmless. The trial court erroneously found that

Woods made statements admitting specific instances of sexual abuse

to Stamper; he actually made these statements to Thompson. He

only told Stamper he was not denying her general summary that his

daughter had indicated he was inappropriately touching her.

[*P52] Nevertheless, we agree with the state that this mistake was

harmless because the trial court's suppression ruling was not

dependent on when Woods made more detailed incriminating

statements. The trial court's conclusion that Woods was not

subjected to custodial interrogation when he spoke to Stamper and

Thompson was not dependent on that fact. Therefore, we overrule

Woods's first assignment of error.

3. Right to Remain Silent

[*P53] In his second assignment of error Woods contends because

the deputy failed to scrupulously honor his assertion of his right to

remain silent, the trial court erred when it denied his motion to

suppress his statement to Deputy Sheriff Chaffins. Neither party

disputes that the deputy administered Miranda warnings to Woods

before questioning him and Woods acknowledged that he

understood them. Instead the dispute is about whether Woods

clearly invoked his right to remain silent during the interrogation.

[*P54] "Invocation of the Miranda right to [remain silent]

'requires, at a minimum, some statement that can reasonably be

construed to be an expression of a desire [to cease all questioning].'"

Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129

L.Ed.2d 362 (1994), quoting McNeil v. Wisconsin, 501 U.S. 171,

178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). "If the suspect's

statement is not an unambiguous or unequivocal [invocation of the

right to remain silent], the officers have no obligation to stop

questioning him." Davis, 512 U.S. at 461. "'If an accused makes a

statement concerning the right to [remain silent] 'that is ambiguous

or equivocal' or makes no statement, the police are not required to

end the interrogation, or ask questions to clarify whether the accused

wanted to invoke his or her Miranda rights.'" State v. Lawson, 4th

Dist. Pickaway No. 14CA20, 2015-Ohio-4394, ¶ 19, quoting

Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S.Ct. 2250, 176

L.Ed.2d 1098 (2010).

[*P55] Woods asserts after being Mirandized and acknowledging

his waiver, Deputy Sheriff Chaffins asked him "what's going on."

Although the state's transcript of the statement listed Woods's

response as partly unintelligible, Woods claims he responded that

"he had already provided a statement to Thompson, that he believed

himself to be under arrest, and that he had nothing to say." Thus he

contends questioning should have stopped.

[*P56] Our own review of the audio recording of Woods's

statement to the deputy reveals the following dialogue:

Chaffins: Do you care to talk about what's going on?

Woods: I said everything I needed to say already. I'm under

arrest. I've already said everything. Am I under arrest?

Chaffins: I'm just here to question you. That's it. I don't

know what's going on. All I know is your daughter made

an allegation and children services were trying to clear that

up and then I have been brought into the mix of it. I'm here

to get your side of the story. I haven't talked to your

daughter yet. I talked briefly to children services but not

enough to get the whole story. I just wanted to see what

your, a lot of times it's easier to just cut to the chase and

talk to the person directly.

[*P57] Woods then proceeded to answer additional questions from

the deputy and Thompson.

[*P58] Our review of the recording does not support Woods's claim

that he told the deputy that he "had nothing to say." At best, he

referenced his previous statement to Thompson by indicating that he

had "already said everything." But he tied that answer to a question

about whether he was under arrest.

[*P59] Woods's statement was comparable to a "suspect

expressing a desire not to elaborate on a prior answer because he

had nothing else to say about it," which is not tantamount to

unequivocally invoking the right to remain silent and to terminate

the interview. See, e.g,, State v. Gray, 2017-Ohio-563, 85 N.E.3d

316, ¶ 11 (2d Dist.), and cases cited. Similarly, in State v. Griffith,

11th Dist. Trumbull No. 2001-T-0136, 2003-Ohio-6980, ¶ 34, the

court determined that the defendant did not unambiguously invoke

his right to remain silent by stating, "I'm done," because in the

context of the questioning, it "could have meant that [defendant's]

previous answer was complete and that he had nothing to add to that

answer," but "did not clearly display [his] intention to not answer

subsequent questions."

[*P60] The record does not support Woods's claim that he

unequivocally invoked his right to remain silent during his interview

with Deputy Sheriff Chaffins. The deputy was not required to stop

questioning him or even clarify whether he wished to continue

answering questions. Lawson, 2015-Ohio-4394, at ¶ 33. We

overrule Woods's second assignment of error.

State v. Woods, supra.

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings. The question before

the habeas corpus court is not whether the application of Supreme Court precedent is correct, but

whether it is unreasonable. In other words, we do not consider the constitutional claims anew, but

only whether the state court applied Supreme Court precedent unreasonably.

In this case the Fourth District Court of Appeals decided on the merits all of the first four

constitutional claims Woods makes in his Petition and he has not shown that the decision is an

objectively unreasonable application of the relevant Supreme Court precedent. Grounds One,

Two, Three, and Four should be dismissed on that basis.

Ground Five: Insufficient Evidence

In his Fifth Ground for Relief, Woods claims his convictions are against the manifest

weight of the evidence and supported by insufficient evidence.

A manifest weight of the evidence claim does not state a federal constitutional claim and

is therefore not cognizable in habeas corpus. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986).

The manifest weight portion of Ground Five should therefore be dismissed for failure to state a

claim upon which habeas corpus relief can be granted.

An allegation that a verdict was entered upon insufficient evidence, on the other hand, does

state a claim under the Due Process Clause of the Fourteenth Amendment to the United States

Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970);

Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th

Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the

crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt . . . . This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences

from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting

Jackson) This standard “must be applied with explicit reference to the substantive elements of the

criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law

which determines the elements of offenses; but once the state has adopted the elements, it must

then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge

should be assessed against the elements of the crime, not against the elements set forth in an

erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus

case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to

the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,

541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);

Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based

upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656

(6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

Most recently in Thompson v. Skipper, 981 F.3d 476 (6th Cir., 2020), the Sixth Circuit held:

“To evaluate a sufficiency-of-the-evidence claim, we consider ‘whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’ Smith v. Nagy, 962 F.3d 192, 205

(6th Cir. 2020) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard “must be

applied with explicit reference to the substantive elements of the criminal offense as defined by

state law.” Id. (quoting Jackson, 443 U.S. at 324).”

The Fourth District Court of Appeals decided Woods’ sufficiency of the evidence claim on

the merits, writing:

[*P61] In his third and fourth assignments of error Woods asserts

that his convictions for rape and gross sexual imposition were not

supported by sufficient evidence and were against the manifest

weight of the evidence.

[*P62] "When a court reviews the record for sufficiency, '[t]he

relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a

reasonable doubt.'" State v. Maxwell, 139 Ohio St.3d 12, 9 N.E.3d

930, ¶ 146, 2014-Ohio-1019, quoting State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

[*P63] "A sufficiency assignment of error challenges the legal

adequacy of the state's prima facie case, not its rational

persuasiveness." State v. Koon, 4th Dist. Hocking No. 15CA17,

2016-Ohio-416, ¶ 17. "That limited review does not intrude on the

jury's role 'to resolve conflicts in testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate

facts.'" Musacchio v. United States, U.S. , 136 S.Ct. 709, 715,

193 L.Ed.2d 639 (2016), quoting Jackson, 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560.

[Text discussing manifest weight standard omitted.]

[*P66] In his third assignment of error Woods claims that his

convictions for one count of rape and five counts of gross sexual

imposition of a child less than 13 years of age were not supported

by sufficient evidence.

[*P67] Woods was convicted of rape in violation of R.C.

2907.02(A)(1)(b), a felony of the first degree, which states: "[n]o

person shall engage in sexual conduct with another who is not the

spouse of the offender * * * when * * * [t]he other person is less

than thirteen years of age, whether or not the offender knows the age

of the other person." "'Sexual conduct' means vaginal intercourse

between a male and female; anal intercourse, fellatio, and

cunnilingus between persons regardless of sex; and, without

privilege to do so, the insertion, however slight, of any part of the

body or any instrument, apparatus, or other object into the vaginal

or anal opening of another. Penetration, however slight, is sufficient

to complete vaginal or anal intercourse." R.C. 2907.01(A).

[*P68] He was also convicted of gross sexual imposition under

R.C. 2907.05(A)(4), which states: "[n]o person shall have sexual

contact with another, not the spouse of the offender * * * when * *

* [t]he other person * * * is less than thirteen years of age, whether

or not the offender knows the age of that person." "'Sexual contact'

means any touching of an erogenous zone of another, including

without limitation the thigh, genitals, buttock, pubic region, or, if the

person is a female, a breast, for the purpose of sexually arousing or

gratifying either person." R.C. 2907.01(B).

[*P69] Woods argues that because the jury found him not guilty of

the counts that were based upon two fact-specific incidents

involving the kitchen and bedroom mirror, it could not convict him

of the counts based upon more general factual assertions. He

contends "[a]t least some specifics regarding where and when an

alleged assault occurred, and what specific actions occurred that

constitute an offense, are required to prove beyond a reasonable

doubt that [he] is guilty of an offense."

[*P70] However the law is clear that testimony regarding the exact

date and time of an offense is not required in these cases. That is,

"[a]n allowance for reasonableness and inexactitude must be made

for such cases because many child victims are unable to remember

exact dates and times, particularly where the crimes involve a

repeated course of conduct over an extended period of time and the

accused and the victim reside in the same household, which

facilitates the extended period of abuse." See, generally, State v.

Neal, 2016-Ohio-64, 57 N.E.3d 272, ¶ 24 (4th Dist.), citing State v.

Adams, 2014-Ohio-5854, 26 N.E.3d 1283, ¶ 51 (7th Dist.); see also

State v. Wright, 2d Dist. Clark No. 99CA0011, 2000 Ohio App.

LEXIS 2239, 2000 WL 679142, *5 (May 26, 2000) (rejecting

appellant's argument that his convictions for gross sexual imposition

were not supported by sufficient evidence because the child victim

"never provided any specific dates or times when these offenses

occurred"). In these cases, the state need only "establish that the

offense charged occurred within a reasonable time in relation to the

dates fixed in the indictment." Neal at ¶ 24 (stating this precept in

the context of addressing an insufficient-evidence claim); State v.

McIntire, 6th Dist. Huron No. H-13-018, 2015-Ohio-1057, ¶ 42,

citing State v. Dodson, 12th Dist. Butler No. CA2010-08-191, 2011-

Ohio-6222, ¶ 40; see also State v. Green, 4th Dist. Ross No.

04CA2760, 2004-Ohio-5089, ¶ 16 ("the prosecution was not

required to prove the exact date of the offense because the date is

not an element of the offense. However, the prosecution is required

to prove beyond a reasonable doubt that the incident occurred within

the time frame specified in the indictment").

[*P71] This case involved Woods's repeated sexual abuse of his

minor daughter over an extended period of time while they lived in

the same household. The particulars of the crimes were supported

by sufficient evidence. The child victim testified that Woods

touched her breasts more than ten times and touched the inside of

her vagina every time he came into her bedroom before she was 13.

And Woods admitted inappropriate sexual behavior with his

daughter to Stamper, Thompson, and Deputy Sheriff Chaffins. He

also admitted to being sexually aroused when he touched his

daughter's breasts. After viewing this evidence in a light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crimes of rape and gross sexual

imposition of a child less than 13 years of age proven beyond a

reasonable doubt. We overrule Woods's third assignment of error.

State v. Woods, supra.

As can be readily seen, the Fourth District cited the correct standard from Jackson, so its

decision is not “contrary to” clearly established federal law. Woods says nothing about Ground

Five in his Reply. Analyzing the evidence recited by the Fourth District, the victim gave direct

testimony to support the charges.

The Sixth Circuit has long held that the testimony of the victim alone is constitutionally

sufficient to sustain a conviction. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008), citing United

States v. Terry, 362 F.2d 914, 916 (6th Cir. 1966) ("The testimony of the prosecuting witness, if

believed by the jury, is sufficient to support a verdict of guilty."); see also O'Hara v. Brigano, 499

F.3d 492, 500 (6th Cir. 2007) (holding that victim's testimony that habeas petitioner abducted her

and raped her was constitutionally sufficient to sustain conviction despite lack of corroborating

witness or physical evidence); United States v. Howard, 218 F.3d 556, 565 (6th Cir. 2000) (holding

that even if the only evidence was testimony of the victim, that is sufficient to support a conviction,

even absent physical evidence or other corroboration); United States v. Jones, 102 F.3d 804, 807

(6th Cir. 1996) (noting that there is sufficient evidence to support a conviction even if the

"circumstantial evidence does not remove every reasonable hypothesis except that of guilt")

(internal quotation marks omitted).

The fact that the jury acquitted Woods on some of the charges where the specifics of the

witness’s testimony were more detailed does not undermine the verdict on the remaining counts.

The jury might have doubted her ability to remember very specific details, but credited her

testimony as to patterns of abuse.

The Fourth District’s decision on the merits of this claim are not an objectively

unreasonable application of Jackson and is therefore entitled to deference. On that basis, Ground

Five should be dismissed.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the

Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this

conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that

the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not

be permitted to proceed in forma pauperis.

February 23, 2021.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such

objections shall specify the portions of the Report objected to and shall be accompanied by a

memorandum of law in support of the objections. A party may respond to another party’s

objections within fourteen days after being served with a copy thereof. Failure to make objections

in accordance with this procedure may forfeit rights on appeal. #

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